State v. Barlow

STATE_V_BARLOW.91-454; 160 Vt. 527; 630 A.2d 1299


 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.

                                 No. 91-454


 State of Vermont                             Supreme Court

                                              On Appeal from
      v.                                      District Court of Vermont,
                                              Unit No. 2, Orleans Circuit

 William Barlow, Jr.                          April Term, 1993



 Walter M. Morris, Jr., J.

 Jeffrey L. Amestoy, Attorney General, and David Tartter, Assistant
    Attorney General, Montpelier, for plaintiff-appellee

 Charles Martin of Martin & Paolini, Barre, for defendant-appellant


 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.




      GIBSON, J.   Defendant entered a conditional plea of guilty to sexual
 assault on a minor, commonly known as statutory rape, in violation of 13
 V.S.A. { 3252(3) (now 13 V.S.A. { 3252(a)(3)).  He appeals on grounds that
 the statute violates a substantive due process right to privacy under the
 Vermont Constitution and the right to equal protection under the United
 States Constitution.  We affirm.
      Defendant argues that privacy in sexual matters is a natural or funda-
 mental right "implicit in the concept of ordered liberty," Palko v.
 Connecticut, 302 U.S. 319, 325 (1937), and that this right should be
 recognized under the Vermont Constitution.  He contends that by limiting

 

 criminalization to a sexual act with a "person under the age of 16, except
 where the persons are married to each other and the sexual act is
 consensual," 13 V.S.A. { 3252(3), the Legislature recognized that this right
 extends to persons under the age of sixteen.   He also maintains that the
 statute in effect compels marriage with a would-be sexual partner under the
 age of sixteen, and that this amounts to a violation of due process because
 the decision to marry or not to marry is a fundamental right, which cannot
 be infringed by the state.  See Loving v. Virginia, 388 U.S. 1, 12 (1967).
 Defendant further contends that the statute violates equal protection
 guarantees by treating married and unmarried minors differently with respect
 to sexual intercourse.
      We do not decide whether to recognize a right to privacy in sexual
 matters under the Vermont Constitution or whether this right extends to
 minors because, in any event, we conclude that the state has a compelling
 interest in protecting minors that is served by the statute at issue.  Cf.
 Florida v. Jones, 62 U.S.L.W. 2004, 2005 (Fla. Ct. App. June 4, 1993)
 (recognizing a fundamental right to privacy for minors but concluding that
 compelling state interest outweighs the limited burden of waiting until age
 of majority).  The trial court noted that the state has long recognized an
 obligation to protect its children from others and from themselves.  It
 found that the statutory rape law has many "salutary purposes," citing with
 approval State v. Munz, 355 N.W.2d 576, 585 (Iowa 1984), which listed the
 dangers of pregnancy, venereal disease, damage to reproductive organs, the
 lack of considered consent, heightened vulnerability to physical and
 psychological harm, and the lack of mature judgment, among the many
 significant interests of the state.  Further, the United States Supreme

 

 Court has itself observed that "teenage pregnancies . . . have significant
 social, medical and economic consequences for both the mother and her child,
 and the State."  Michael M. v. Superior Court, 450 U.S. 464, 470 (1981).
     The Supreme Court has also "recognized that even where there is an
 invasion of protected freedoms 'the power of the state to control the con-
 duct of children reaches beyond the scope of its authority over adults . . .
 .'"  Ginsberg v. New York 390 U.S. 629, 638 (1968) (quoting Prince v.
 Massachusetts, 321 U.S. 158, 170 (1944)).  Similarly, this Court has noted
 that:
           Vermont law reflects our enhanced concern for the
           protection and well-being of minors and the gravity we
           attach to crimes involving the exploitation of minors.
           See, e.g., 13 V.S.A. { 1304 (cruelty to children under
           ten by one over sixteen); 33 V.S.A {{ 4911-4920
           (reporting abuse of children); 13 V.S.A. { 2804b (dis-
           playing obscene materials to minors); 13 V.S.A. {{
           2821-2826 (sexual exploitation of children).

  State v. Searles, 4 Vt. L.W. 47, 48 (Jan. 15, 1993).  Thus, our law is well-
  settled that the state has a compelling interest in protecting the well-
  being of minors.  Cf. Globe Newspaper Co. v. Superior Court, 457 U.S. 596,
  607 (1982) (recognizing state's compelling interest in "safeguarding the
  physical and psychological well-being of a minor").  We agree with the
  Florida court that any infringement on the minor's privacy interest under
  the state constitution is limited in duration and is outweighed by a
  compelling state interest.
       Defendant's equal protection claim focuses on the state's different
  treatment of an adult who has sex with a minor spouse and an adult who has
  sex with an unmarried minor.  The equal protection clause of the United
  States Constitution requires that all persons "'shall be treated alike
  under like circumstances and conditions[,] both in the privileges conferred

 

  and in the liabilities imposed.'"  State v. Reynolds, 109 Vt. 308, 312, 1 A.2d 730, 732 (1938) (emphasis in original) (quoting Marchant v.
  Pennsylvania R.R., 153 U.S. 380, 390 (1894)).  Because of the requirements a
  minor must complete prior to marriage, we hold that the two adults described
  above are not similarly situated.
       In order to protect minors from sexual exploitation, the state has
  enacted certain requirements for minors who wish to marry.  Pursuant to 18
  V.S.A. { 5142(2), a minor between the ages of fourteen and sixteen who
  desires to marry must first obtain the consent of a parent and the certi-
  ficate of a judge that the public good requires that a marriage license be
  issued.  Thus, at the point when a married minor engages in sex with his or
  her spouse, the state has already taken steps to protect the minor.
       Defendant disagrees with the usefulness of the distinction, arguing
  that "sexual exploitation is just as capable of occurring within or without
  a marriage."  We realize that sexual exploitation can occur within marriage,
  but minors are particularly vulnerable and in need of protection.  The
  United States Supreme Court has itself recognized "the peculiar
  vulnerability of children," Bellotti v. Baird, 443 U.S. 622, 634 (1979), and
  that "during the formative years of childhood and adolescence, minors often
  lack the experience, perspective, and judgment to recognize and avoid
  choices that could be detrimental to them."  Id. at 635.  The Court also
  noted the importance of "the guiding role of parents in the upbringing of
  their children," id. at 637, and "that the parental role implies a
  substantial measure of authority over one's children."  Id. at 638.  It is
  in this context that the Legislature has designed the measures described
  above to help protect minors who contemplate marriage and to minimize the

 

  possibility of their sexual exploitation.  The unmarried minor, however, has
  not received the state's protection and is not similarly situated.
       Defendant also contends that Vermont's statutory rape law is subject to
  the potentially abusive exercise of prosecutorial discretion.  But the law
  is not susceptible of interpretation as to which conduct is covered and
  which is exempt.  Nothing more than a calendar and the person's birth
  certificate are required to determine the statute's applicability.
       The balance of defendant's arguments amount to assertions that
  statutory rape laws like Vermont's are remnants of an earlier age, that they
  reflect the status of women as chattels, and that they perpetuate archaic
  social views about sexuality.  The Legislature, however, had a compelling
  interest in protecting minors when it criminalized sexual relations between
  adults and minors, and defendant's wide-ranging speculations about the
  diminished need to protect children from adult sexual contact raise no
  federal or state constitutional issues.  Pleas for a different statute or
  for none at all should be addressed to the Legislature.
       Affirmed.

                                     FOR THE COURT:



                                     ___________________________________
                                     Associate Justice